Alfeen Mehdi Mohamed v Basil Feroz Mohamed & 223 others [2017] KECA 302 (KLR)
The bottom line
#The Court of Appeal refused a Mombasa landowner permission to take her adverse possession case to the Supreme Court, ruling the legal issue was already settled.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Court of Appeal to extend time for filing a notice of appeal in the Supreme Court
The Court of Appeal lacks jurisdiction to extend time set by the Supreme Court Rules; that power vests exclusively in the Supreme Court under Rule 53.
The delay explanation was made only from the bar and was unsupported. More fundamentally, the Court reasoned that time limits for filing a notice of appeal in the Supreme Court are set by the Supreme Court Rules, and the Court of Appeal's power under Rule 4 of the Court of Appeal Rules extends only time limited by its own Rules or a decision of the Court or a superior court, not time fixed by the Supreme Court Rules.
Whether the intended appeal raises a matter of general public importance under Article 163(4)(b)
It does not. The question whether the applicant's title was extinguished by adverse possession is settled law, applies the Hermanus principles, and follows Malcolm Bell in holding that adverse-possession questions are not matters of general public importance.
Applying the principles in Hermanus Phillipus Steyn as summarised in Town Council of Awendo, the applicant failed to show an issue transcending the particular case with a significant bearing on public interest. The Supreme Court in Malcolm Bell had already held that adverse-possession questions are straightforward issues resolvable by the superior courts and fall outside the profile of a matter of general public importance. The applicant's grounds merely restated grievances with the merits.
Legal principles established
#- The Court of Appeal has no jurisdiction to extend time limited by the Supreme Court Rules for filing a notice of appeal; only the Supreme Court, under Rule 53 of the Supreme Court Rules, may enlarge such time.
- On an application for leave to appeal to the Supreme Court, the test is not whether the Court of Appeal's decision is right or wrong, but whether the intended appeal raises a matter of general public importance.
- Whether title is extinguished by adverse possession is settled law and does not, by itself, constitute a matter of general public importance warranting appeal to the Supreme Court.
Court orders
#- 1.The application for leave to file an appeal in the Supreme Court is dismissed.
- 2.Costs of the application awarded to the respondents.
- On appeal from
- Court of Appeal at Mombasa
- Civil Appeal No. 84 of 2015
- Jurisdiction invoked
- Sections 15 & 16 of the Supreme Court Act, Rules 24(1) & 31(2) of the Supreme Court Rules, Sections 3A & 3B of the Appellate Jurisdiction Act and Rules 1, 42, 43 & 47 of the Court of Appeal Rules; certification under Article 163(4)(b) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Masila & 2 others v Krotonite Enterprises Limited (Miscellaneous Application 31 of 2018) [2024] KEELC 5982 (KLR)[2024] KEELC 5982 (KLR)18 Sept 2024
Cite this brief
#Cite this brief
Caselaw, "Alfeen Mehdi Mohamed v Basil Feroz Mohamed & 223 others [2017] KECA 302 (KLR)", Case Analysis (2017). Civil Appeal (Application) No. 84 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/302/eng@2017-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.